People v. Wearen

155 A.D.2d 889, 547 N.Y.S.2d 723, 1989 N.Y. App. Div. LEXIS 14723

Opinion

— Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court, Monroe County, for resentencing, in accordance with the following memorandum: Defendant’s convictions for robbery in the second degree and attempted robbery in the second degree arise from two incidents on a bus when the codefendant seized the victim’s purse and defendant, thereafter, attempted to seize her shopping bag. Defendant was charged with forcibly stealing property and attempting to forcibly steal property when “aided by another person actually present”. We agree with defendant that, under the circumstances of this case, although defendant may have importuned his codefendant to steal the purse forcibly, the codefendant, in stealing the purse, was not aided by another person actually present (see, People v Hedgeman, 70 NY2d 533, 541). The codefendant had already taken the purse and had left the bus when defendant left his seat in the rear of the bus and approached the victim and attempted to steal her shopping bag.

Further, it is only speculation that defendant, in his attempt to steal the shopping bag, was aided by a person actually present. There is no indication that the codefendant acted to divert the victim’s attention as defendant approached her.

We therefore reduce the conviction of robbery in the second degree to robbery in the third degree and reduce the conviction of attempt to commit robbery in the second degree to attempt to commit robbery in the third degree. (Appeal from judgment of Supreme Court, Monroe County, Bergin, J. — robbery, second degree, and other charges.) Present — Callahan, J. P., Boomer, Pine, Lawton and Davis, JJ.